Senator Rand Paul speaks at a Senate hearing on Capitol Hill on February 3.
Photograph:
Anna Moneymaker – Pool Via Cnp / Zuma Press
During Bill Clinton’s impeachment, his supporters argued that his misconduct was ultimately private and did not amount to an impeachable offense. In the current impeachment of Donald Trump, this is a difficult argument to make with a straight face, as the offenses of the then president, which culminated in the siege of the Capitol, were obviously public and political. Therefore, his supporters claim, instead, that it is unconstitutional for the Senate to judge him now that he is no longer in office.
Forty-five Republican senators voted in favor of Senator Rand Paul’s motion challenging the Senate’s jurisdiction to try Trump. But studies on this issue have matured substantially since that vote and exposed the serious weakness of Mr. Paul’s analysis.
The strongest argument against the Senate’s authority to try a former officer is based on Article I, Section 4 of the Constitution, which provides: “The president, vice president and all civilian officials of the United States will be removed from office by impeachment for, and conviction, betrayal, bribery or other serious crimes and misdemeanors. ”Opponents of the trial argue that because this provision requires removal, and because only incumbent officers can be removed, it follows that only incumbent officers can be charged with impeachment and tried.
But the provision cuts against its interpretation. It simply establishes what is known in criminal law as a “minimum mandatory” punishment: if a post holder is convicted of two-thirds of the Senate’s votes, he will be removed from office as a matter of law.
If removal was the only punishment that could be imposed, the argument against the trial of former officers would be convincing. But it is not. Article I, Section 3 authorizes the Senate to impose an optional punishment on conviction: “disqualification to exercise and enjoy any office of honor, trust or profit in the United States”.
This punishment can only be imposed on old officers. This is because Article II, Section 4 is self-enforceable: A convicted office holder is automatically removed at the time of conviction. The Senate’s formal procedures for impeachment trials recognize this constitutional reality, noting that a two-thirds vote to condemn “operates automatically and instantly to separate the accused from office.” The Senate may then, at its discretion, hold a separate vote to impose, by a simple majority, “the additional consequences provided for by the Constitution in the case of an impeachment and convicted civil servant, namely: permanent disqualification of the elected or appointed office.”
Thus, a Senate vote to disqualify can only be taken after the officer has been removed and, by definition, a former officer. Given that the Constitution allows the Senate to impose the penalty of permanent disqualification only on former office holders, it is logical to suggest that the Senate is prohibited from prosecuting and convicting former office holders.
Some have argued alternatively that the trial is unconstitutional because the president of the court, John Roberts, will not preside. (The majority leader, Chuck Schumer, said that the president of the court was questioned and refused.) Article I, Section 3, states that “when the president of the United States is tried, the president of the court must preside”.
This argument is wrong, and the definite article is the reason: Mr. Trump is no longer The President. Section 3 excludes the vice president from a trial of an incumbent president because she would accept the position if he were convicted. This consideration does not apply to Kamala Harris. It appears that Mrs. Harris also refused to chair, so the role will be filled by President Pro Tem Patrick Leahy. But she could unilaterally claim that prerogative at any time, including tiebreakers in procedural motions or in the decision to disqualify Trump.
The senators who supported Paul’s motion must reconsider his opinion and judge the former president’s misconduct based on merit.
Mr. Cooper is a founding member and president of Cooper & Kirk PLLC.
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